Citation Nr: 0005556 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-05 259 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from July 1950 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1997 decision by the RO. This case was previously before the Board in January 1999, when it was remanded to the RO for further development. The case was returned to the Board in February 2000. FINDING OF FACT The veteran's defective hearing is not attributable to his period of active military service. CONCLUSION OF LAW The veteran does not have defective hearing that is the result of disease or injury incurred in or aggravated by active military service; sensorineural hearing loss may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385, 3.655 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that service connection should be granted for defective hearing. He maintains that his current difficulties can be traced to noise exposure in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306 (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The Court has held that evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be (1) competent (medical) evidence of a current disability, (2) competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and (3) competent (medical) evidence of a nexus, or link, between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In the present case, the Board finds that the claim of service connection for defective hearing is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The record contains a VA audiometric examination report, dated in December 1996, which shows that the veteran has a current, bilateral hearing disability as defined by VA regulation. See 38 C.F.R. § 3.385 (1999). He claims that he was exposed to excessive noise in the military, and has submitted a letter from a private physician, Nicholas H. Tuttle, M.D., dated in January 1998, which reflects Dr. Tuttle's opinion that the veteran's "hearing loss is sensorineural and secondary to loud noises which he was exposed to in the Navy." Under the circumstances, therefore, the Board finds that the requirements for a well-grounded claim have been satisfied. Because the claim is well grounded, the Board remanded the claim to the RO for further development in January 1999. In its remand, the Board noted that when the veteran was examined for VA purposes in December 1996, no opinion was offered as to the etiology of any hearing impairment. The Board also noted that, although Dr. Tuttle linked the veteran's current hearing impairment to military service, it did not appear that Dr. Tuttle had conducted a review of the available records prior to rendering his opinion on the matter. Lacking an etiological opinion based upon a thorough review of the available evidence, the Board remanded the matter for a new examination. 38 C.F.R. §§ 3.327, 19.9 (1999). Unfortunately, the record shows that the veteran did not appear for the examination as scheduled. Nor has he responded to the RO's notification, contained in a September 1999 supplemental statement of the case, that he should advise VA "if you are now willing to report for a VA exam." Consequently, because the appeal of this issue arises from the denial of an original claim of service connection, the Board must now proceed to an adjudication of the claim based upon the available evidence of record. See 38 C.F.R. § 3.655(b) (1999) ("When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record."). Based upon a review of the evidence currently available, the Board finds that the preponderance of the evidence is against the claim of service connection for defective hearing. Although the letter from Dr. Tuttle indicates that the veteran's hearing disability can be linked to the veteran's period of active military service, it does not appear that Dr. Tuttle's opinion was based on a thorough review of the available evidence. Dr. Tuttle did not account for what was repeatedly described as hearing of 15/15 on several in- service examinations, or the lack of any complaint of hearing loss during service or for many years thereafter. The Board is persuaded by the absence of hearing loss during service and the absence of any medical confirmation of such a problem until more than 25 years after the veteran's separation from service. In short, the Board gives very little weight to Dr. Tuttle's opinion because he gave no consideration to the record. Records prepared contemporaneous with the veteran's military service and the absence of any problem with hearing until many years after military service are more persuasive. Consequently, the Board finds that Dr. Tuttle's opinion does not provide an adequate basis for a grant of service connection. Inasmuch as Dr. Tuttle's opinion is inadequate, and no other evidence suggests a link between currently shown hearing impairment and military service, the claim must be denied. The provisions of 38 C.F.R. §§ 3.307, 3.309, which provide that service incurrence or aggravation may be presumed when organic diseases of the nervous system are manifested to a compensable degree within a year of military service, do not aid the veteran in this case because the evidence does not show sensorineural hearing loss until many years after the veteran's separation from service. ORDER Service connection for defective hearing is denied. MARK F. HALSEY Member, Board of Veterans' Appeals